Applying for a Patent in the US

UPDATED: December 10, 2011

A patent is a proprietary right granted by the United States federal government to an inventor who files a patent application with the United States Patent Office. Therefore, unlike copyright and trademark protection, patent protection will only exist upon the issuance of a patent, which requires you to file a patent application. Furthermore, despite what you may have been told or read, keeping a detailed invention notebook, even if you mail a description of the invention to yourself, provides no exclusive rights.  It is extremely important to keep detailed invention records in case you ever need to prove the particular date you invented, but keeping such records will not provide you any exclusive rights.  You absolutely must file a patent application and have that application mature into an issued patent in order to obtain exclusive rights to your invention.

There are essentially three types of patent applications that can be filed. These are:

Non-provisional Patent Application

Design Patent Application

Plant Patent Application

Each type of patent confers to the patent owner “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or importing the invention into the United States. It is important to note, however, that patents do not protect ideas, but rather protect inventions and methods that exhibit patentable subject matter.  In the United States virtually everything can and does qualitfy as patentable subject matter.  You can patent new and unique machines, devices, process of doing something, process of making something, living matter (such as a bio-engineered organism), business methods, software, compounds and much more, including improvements that relate to any of the aforementioned types of invention.  Those things that cannot be patented include laws of nature, mathematical equations, physical phenomena, abstract ideas, slogans, tradenames or literary works.  Literary works can be protected under copyright laws, and slogans or tradenames can be protected under trademark laws.

You can also file what is called a provisional patent application. Unlike the other patent applications mentioned above, this application will not actual mature into an issued patent, but rather acts as an economical way to start the patenting process. There are few formalities required for filing a provisional patent application, and the Patent Office fee is less. Furthermore, it acts as a place holder in line and affords you the right to legally use the terms “patent pending” or “patent applied for.” Independent inventors should, therefore, strongly consider starting with a provisional patent application.

For more information on the patent application process please see our Overview of the Patent Process. If you are stuck at the idea stage in your invention I recommend reading Moving from Idea to Patent.

If you are contemplating whether you want to work with an invention company to help procure patent protection and obtain marketing assistance, please first read The Truth About Invention Promotion Companies.

If you feel like you need the assistance of a patent attorney please contact me to discuss how I might be able to help.  I have worked with independent inventors, entrepreneurs and small businesses my entire career and I am happy to work with those who need to devise strategies to obtain protection on a limited budget.

For those who would like to draft and file I have developed a unique process called the Invent & Patent System, which allows inventors to do much of their own work toward preparing and filing patent applications. You can then take the output of the system and file it as a provisional patent application, or you could have my firm take what you provide by way of answers and create either a provisional patent application or nonprovisional patent application and file it for you. So the system gives you the inventor the choice with respect to how much you want to do on your own. Since its inception in 2004, this system has helped independent inventors file tens of thousands of provisional patent applications.

If you are uncomfortable filing your own patent application and would like me and my firm to assist you we can help. We typically can prepare and file a provisional patent application for between $1,500 and $2,000 plus filing costs, although for complex inventions (including software and computer implemented processes) the cost can rise to $3,000 to $3,500 plus filing costs. If you have us prepare and file the provisional patent application, and then subsequently prepare and file a nonprovisional application for you, the cost of the provisional patent application is deducted from our fees, which means the only extra cost is the government filing fee of $125 for a provisional patent application.

If you are going to ultimately receive a patent, whether you start with a provisional patent application or not, you are going to need to file a nonprovisional patent application.  Without knowing a good deal about an invention it is very difficult if not completely impossible to give a ballpark estimate as to likely costs associated with filing a nonprovisional patent application.  Nevertheless, below is some rough guidance regarding what you can expect to pay in attorneys fees through filing of a nonprovisional patent application if you were to have me or my firm do the work for you.

The examples in the table below are intended to be illustrative of the level of complexity, not to suggest that they would be patentable. These are just ballpark figures, and attorneys fees through filing can certainly go well above $15,000 depending on complexity of invention and/or the need for and ability to acquire broad patent protection. For more information about costs please see Cost of Obtaining a Patent. Please also be aware that the government filing fee is now over $600 for 20 patent claims (assuming you are a small business or independent inventor) and professional drawings, which really need to be thought of as required, typically cost approximately $400 for a complete set.  It is also worth noting that virtually no invention is “relatively simple.”  Inventors always want to believe what they have is relatively simple, but the majority of inventions for most independent inventors range from minimally complex to moderately complex.

Good luck!

Type of Invention Examples Cost
Relatively Simple electric switch; coat hanger; paper clip; diapers; earmuffs; ice cube tray $5,000 to $6,000
Minimal Complexity board game; umbrella; retractable dog leash; belt clip for cell phone;
toothbrush; flashlight
$6,000 to $8,000
Moderately Complex power hand tool; lawn mower; camera; cell phone;  microwave oven $8,000 to $10,000
Intermediate Complexity ride on lawn mower; video game; simple RFID devices; solar concentrator;
simple software
$10,000 to $12,000
Relatively Complex shock absorbing prosthetic device, software, business methods; software $12,000 to $15,000
Highly Complex MRI scanner; PCR; telecommunication networking systems $15,000 +

For more information on this and related topics see: